Thank you for your help.
Alloosh
Hi, I am divorcing from my husband after 5 years of marriage. We have a small baby amd I would like to better understand the issue regarding parental authority. I understand that the mother usually gets 100% custody of the child (about one year old) and the father has visiting rights. What I am not clear about is the parental authority part. If I agree to share parental authority, what does this mean in practice? would I have to get the fathers approval for every decision made on the child? would this impact my ability to move away from switzerland or within switzerland to another city? I heard about a 2010 convention that addressed the issue of travel of the custodian of the child but I couldn't find it on the internet. I am Briitish and my husband is Swiss. Can anyone recommend a good lawyer in Geneva area or Nyon?
Have you browsed through binational.ch ?
Thank you jrspet. This is very helpful. However i still need more info on parental care issues and what it means. Any other thoughts/tips?
Many thanks
Aloosh
Im happy to see you are concentrating on the child s situation rather than who gets the house and car and how much will i get each month, which is the usual reaction.
The issue of custody should not be confused with the parental authority.
Personally I would encourage you to allow the child as much access to tha father as is possible rather than it becoming a source of tension for the child. You dont want the child to grow up thinking that it is the reason for conflict between the parents.
Its quite possible to have custody of the child and share parental rights, as far asI know it means the father has a decision in its education and wellfare which is why the father can equally oppose a move to somewhere that the child may not enjoy the same rights of security and education etc as those it gets today.
Equally any opposition to a move that would be beneficial for the child would be difficult to be justified if it were on purely emotional grounds and Im sure a judge would allow that move to take place because afterall the childs welfare is paramount and that is how the law sees it.
So I wouldnt be intimidated about the joint parental authority deal, as it can only help to keep the good relationship between father and child, and the legal system (tuteur or child protection agency) will always help in problems.
The Court looks at what is best for your child. If you are not stable they would give custody to the father. With joint custody he has to agree to moving the child out of Switzerland, which schools to attend etc.
Ask at the Frauenhaus to recommend a good lawyer! The police will give you the address and telephone number.
In most cases, the courts will give the mother custody ( la garde ) of the child(ren). This means that it/they will stay with the mother. Be cared for by the mother. Schooled where the mother lives/works etc. It/they will spend time with the father (i.e. alternating weekends, half of vacations etc.). This will be documented in the agreement.
Where things can get interesting is the " l'autorité parentale ". I understand that the courts are going with this option as the starting point and it would be up to the mother to prove that the father should not have half of the parental authority. This means that ALL decisions about the health, schooling and well-being of the child(ren) must be agreed upon with your ex. first. It is up to the mother (who has la garde) to keep the father updated about any and all events in the life of the child(ren). And making sure that he has his say before any decisions are taken
Thanks so much for your response. but it is the authorite parental issue that I am struggling with. Do I have to get his approval if I get a new baby sitter? do I have to get his approval if I move to Geneva nearer to my work (he hates the idea of his son being raised in geneva as he thinks it is very unsafe!)?. I am very reluctant to give him that by law as it is extremely difficult to have a discussion with him about anything. I have been including him in many small decisions as I think it is good for him and our son if he is more involved. I just don't want to have to be legally bound to it as my husband can be extremly difficult and irrational. I have alos given access to see our son as he wishes. He can see him every week day as well as one day in the weekend if he wishes but again, I am careful as to what I become legally bound to as he can make difficult for me.
I suggest you go to the "protection de la jeunesse" in Vaud. and ask for a Tuteur. That person will mediate the decisions between you, thereby avoiding the discussion /argument affecting the child, as it is the Tuteurs decision.
Do you understand what you've just written ?
Kindly be advised that a "tuteur" in the canton de Vaud can be an ordinary Swiss citizen (of good repute) who is selected by the canton to act as a "tuteur" (all decisions) or "curateur" (financial decisions) regarding a person (adult or child) who is not capable of making decisions for himself/herself.
Basically you've suggested to the OP to hand over parental decisions for an undetermined amount of time to another person.
Now even if that person, selected as a "tuteur" is a saint, even with the best of interests, he/she is still an outsider.
Unless there is a viable reason to have a "tuteur" step in, the parents should certainly be able to come to terms in the interest of their child.
In my case, I have custody and we (father and me) share the authority.
It means that we have to agree on the MAJOR decisions concerning our son: health, education and religion. Your choice of babysitter for instance does not really concern him.
Since you have custody, you can go live wherever you want, your ex has nothing to say about it.
Note that you can share authority only if both of you agree to do so. If you refuse, you keep it for yourself. But it's generally important for the fathers to share it, as it helps them feel that they are still a parent and an important part of their child's life, even though they don't have custody.
Thank you so much Melusin. this is very helpful. The only reason I would want to insist on parental authority is that I am not Swiss so my family do not live here (I am alone without family support). So I worry what would happen if I loose my job (I am very limited to the types of work I can do here) and have to go somwhere else to work, would that mean that I would have to loose both my job and my son (since as I understand that with joint parental authority I can not live out of the country and take my son). Also, my parents are getting old, what i they are very sick and I need to take 6-12 months leave o absence to be with them in the UK. I know that my husbands will not do any thing to help me cope with these situations so I am eeling very vulnerable as this is not my home.. I want the father to be fully involved but I do not trust him enough to cooperate in case there is an emergency or a sick parent or lost job. I still need to get clarity in terms o the law if joint parental authority means he can control where I (and his son) live...
Thank you for your help
Alloosh
This was my worries as well, as I might have to go to the US for a few years for my work. The lawyer was very clear about it, my son's father can't prevent me from going as long as I have custody.
But I'd advise you to do like me, and plan the visitations and costs already in your divorce agreement in case you go back to the UK. How often will your child see his father? Who will pay for the travels costs? etc.
In our case, we went to see a mediator to settle everything (alimony, custody, visitations, etc.). When we reached an agreement, we shared the same lawyer to go to court. A mediator is much cheaper than a lawyer, and they really try to help you
That is very reassuring thank you. But obviusly travel abroad has implications on the fathers visitation rights, how do you manage that? Also when did you divorce? as the swiss laws may have changed since then. Can you recommend a lawyer and mediator please.
Sorry so many requests but much appreciated.
Alloosh
We divorced in 2009. For the visitation rights, as long as I live in CH my ex sees his son 1 night/week + from Saturday morning to Sunday morning. It's a bit more than the minimum prescribed by law (1 weekend every fortnight), but we think it's good like that.
If I go abroad, he'll have him for most of the summer holidays + Xmas. We'll share the plane costs. And we'll use Skype on a very regular basis so they can communicate.
I very highly recommand our mediator, Marie-France Courvoisier, Rte des Flumeaux 1, 1008 Prilly (021/646.59.82). She was truly excellent at helping us communicate and keeping our son's interest at the centre, even though my ex and I were barely in speaking terms at the time. But she speaks only French, as far as I know.
Firstly, I totally understand how you are feeling at the moment (distance from family etc). I went through a similar situation recently, and custody was only resolved this year in April, so very recent.
I found the comments above very different from my experience.
I think there is a misconception that mothers will automatically be granted sole custody in Switzerland. I certainly believed this initially.
The judge in my case was very clearly in favor of joint custody (even though my daughter lives with me), unless there was a strong reason for the father not to be given custody (think violence, etc, which was not the case).
We spent a long time in court discussing what this specifically means with regards to decision making, and in my case it meant:
- I take all the day to day decisions re doctors, school etc, but should consult my ex with regards to major decisions
- I expressly cannot take our child to another country without his consent, as this would interfere with his relationship with his daughter
I understand this position, even though it goes against what I emotionally feel is right, as I am very much the main carer.
I imagine a key factor will be how hard your partner fights for his visitation rights, and if he would be at all open to you taking your child to live in the UK or elsewhere.
I wish you all the best in this!
Does anyone know if the nationality of the child has any bearing on any of this?
For example - Is a British mother allowed to take a Swiss child abroad, against the will of the Swiss father? If the child is also British? If the child is 'only' Swiss?
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Thanks dottie for your reply, but I am not sure if you mean joint custody or joint parental authority. Since the child is living with you, it sounds like you are talking about joint parental authority. Also, was the judge in Swtzerland or Germany?
OP wrote that any discussion with her husband was very difficult. Thanks for being kind in your advice but sometimes a tuteur is used in the case the parents cannot discuss the affairs of the child. In the case that it becomes apparent to a judge presiding over the divorce, he/she in any case has the power to appoint a tuteur.
The judge / court hearing is in Switzerland, as we are resident here (everything is based on where the child is resident, not the nationalities of the parents).
As parents we share joint custody (gemeinsame Sorgerecht, we are in the German speaking part), but as out above, I have the right to take all the day to day decisions.
We spent a lot of time defining exactly what these decisions are.
I did apply for single custody (having been told that I could quite easily get this in Switzerland), but the judge was clearly against it.
I understand that single custody (normally the mother) was common in the past, but there is pressure in CH legal circles to change the legislation towards the European model of joint custody.
My lawyer told me that the individual judge's preferences play a strong role in this. Some judges are happy to award single custody, others not. Mine was not.
However, to end on a positive note: if I did want to take my daughter back to the UK (she holds a British passport) the judge did say that it would take exceptional circumstances for my ex to block this.
I think the best thing is to get good legal advice (and it will be expensive, think CHF 1000-2000) ... this was just my experience and one thing I have learnt about Switzerland is that there are many grey areas in the topics of custody and child maintenance. The guidelines are not as strict as one would expect.
Just an awful situation for you ... and your child